2001 PLP 1612 (MLD)

After hearing the learned counsel for the parties and having gone through the evidence adduced by the appellant and other material on record, the learned Rent Controller formulated the following points for determination:‑‑ (1) Whether the opponent No. l has committed any default? (2) Whether the opponent No. 1 has sublet the case premises to opponent No.2? (3) What should the other order be. After hearing the learned counsel for the parties the learned Rent Controller passed the judgment in. terms as stated above. At the very outset, Mr. K.B. Bhutto, learned counsel for the appellant has invited my attention on the order‑sheet dated 18‑5‑1999 wherein it is mentioned that it was pointed out that Mr. M.A. Latif was informed that he was never enrolled as an Advocate of the High Court, which fact has been recently circulated by the Sindh Bar Council. In these circumstances, the matter was adjourned and notice was issued directly to respondents for the next date of hearing. Show‑cause notice was also issued to Mr. M. A. Latif to show cause as to why the matter should not be referred to Sindh Bar Council for his professional misconduct in view of Legal Practitioners Bar Councils Act, 1973. Order sheet dated 16‑11‑1999 reveals that intimation notices issued to respondents have been returned unserved by the bailiff with the report that none of them was present at the given address and he was informed that they do not live there. Notices were repeated in ordinary course, by courier service and by affixation at the cost of the appellant. Order sheet dated 7‑12‑1999 reveals that notice has been served through Courier Service. However, none was present on behalf of respondents. Office was directed to send intimation notice to respondents for the date of hearing. The Bailiff was directed to affix the intimation notice at the outer door at the last known address, in case anybody refused to accept the notice. Order‑sheet dated 21‑12‑1999 reveals that intimation notice has been issued to respondents in the ordinary course, by Courier Service and affixation of the notice at the outer door at the last known address; none of them made their appearance of the aforesaid mode of services. In these circumstances, the appeal was directed to proceed ex parte against the respondent No.

1. Mr. K.B. Bhutto' for the appellant submits that learned Rent Controller has not based his finding on point No. l with regard to default on sound reasons and has mentioned in his finding that the report of Nazir, who has given clean bill of health to the respondent/opponent and no case on this point is made out. Consequently, the learned Rent Controller has given his findings in negative against the appellant/applicant. The finding of learned Rent Controller on Point No.2 with regard to subletting is not elaborative; Mr. K.B. Bhutto has also drawn my attention to evidence of the appellant's attorney, who has supported the averments of his application and he has also been subjected to cross‑examination but nothing has been extracted from his mouth to establish that default has not been committed by the respondent. He has further drawn my attention that neither the respondents/opponents have examined themselves on oath nor they led any evidence and the statement of the attorney of the appellant has gone unshaken even in cross‑examination. He has further argued that learned Rent Controller has not taken into consideration the entire evidence of the appellant and has not taken into consideration the cross‑examination; on the contrary the default has been proved and subletting has also been proved. I have given my anxious consideration to the arguments rendered by the learned counsel for the appellant and have examined the affidavit‑in?-evidence and cross‑examination and the material available on record. The startling point is that the respondents have not examined themselves before the learned trial Court; moreover the learned Rent Controller has not given his finding on point No. 1 with regard to default and no report of Nazir was produced before the learned Rent Controller as argued by Mr. K.B. Bhutto and moreover the Report has been taken into consideration by the learned Rent Controller and the judgment passed by the learned Rent Controller appears to be in slipshod manner and he has not taken into consideration the entire facts of the case. In view of the above discussion I am of the considered view that the appellant has been able to make out a prima facie case for grant of above appeal; accordingly, I set aside the impugned judgment, appeal is allowed; the respondents are directed to vacate the demised premises and hand over I the vacant peaceful possession of the demised premises to the appellant I within three months from today. H. B. T. /J‑23/K Appeal allowed.